John W. Berry
Erin J. Cox
Robert L. Dell Angelo
Elaine J. Goldenberg
David H. Fry
George M. Garvey
John M. Gildersleeve
Kathleen M. McDowell
Achyut J. Phadke
James C. Rutten
John W. Spiegel
We have a long track record of obtaining successful results in significant securities litigation. Our recent representations include:
• Mattel in obtaining dismissal of a securities class action alleging that Mattel engaged in illegal “channel-stuffing” and in successfully defending that dismissal on appeal, as well as in obtaining dismissal of an unrelated securities class action challenging Mattel’s disclosures regarding its cost savings program.
• Edison International in obtaining dismissal of a securities class action alleging that wildfires and mudslides in Southern California revealed that the company and its executives had misrepresented its safety practices and the risks of potential wildfire liability, and in successfully defending that dismissal on appeal.
• Intel and its officers and directors in obtaining dismissal of securities and derivative litigation arising from the Spectre and Meltdown security vulnerabilities affecting most computer processors made in the last 20 years, and in successfully defending the dismissal of derivative claims on appeal.
• Paul Wachter, Jimmy Iovine, and Dr. Dre, co-founders of Beats Electronics LLC, in obtaining summary judgment in a lawsuit by Monster Inc. and its founder alleging fraud, breach of fiduciary duty, unfair competition and violations of the California Corporations Code.
• Evan Goldberg, co-founder of NetSuite, in obtaining dismissal of derivative claims alleging that Goldberg aided and abetted Oracle’s Larry Ellison (NetSuite’s largest stockholder) in causing Oracle to acquire NetSuite at an allegedly inflated price, a novel attempt to expand the bounds of aiding-and-abetting law.
• Mark Zuckerberg in litigation challenging proposal to issue non-voting stock alleged to extend the founder’s control of Facebook, which was dismissed as moot, as well in follow-on shareholder litigation, which was dismissed with the dismissal affirmed by the Delaware Supreme Court.
• John Hammergren, CEO of McKesson, in obtaining a favorable settlement, within insurance limits, of derivative claims arising from the opioid crisis, in which plaintiffs claimed that directors and officers were responsible for the company’s multibillion-dollar exposure in major opioid litigation.
• Bank of America in obtaining dismissal of a securities class action alleging that Bank of America should have disclosed potential liability to AIG concerning AIG’s mortgage-backed securities losses, and in successfully defending that dismissal on appeal.
Detailed examples of how Munger, Tolles & Olson has guided clients through complex shareholder matters follow:
- Securing Across-the-Board Dismissals of Shareholder Litigation Arising from Nuclear Plant Retirement
Client: Edison International
Munger, Tolles & Olson represented Edison International and its directors and officers in obtaining dismissals, and defending the dismissals on appeal, of shareholder claims arising from the retirement of the San Onofre Nuclear Generating Station and a related $3.3 billion settlement approved by the California Public Utilities Commission (CPUC). In 2015, news about alleged settlement talks with CPUC officials led to the filing of a federal securities class action, derivative actions in state and federal court, and a class action in federal court asserting stock-drop claims under the Employee Retirement Income Security Act (ERISA). This securities litigation proceeded in three courts while the company negotiated a revised settlement in the CPUC regulatory proceeding.
The securities class action was dismissed with prejudice in 2018, with the district court explaining that it “cannot put on blinders to facts Plaintiff wishes it not to see” and that further amendment was inappropriate because Edison and its executives had “prevailed three times on their motions to dismiss the same claims.” In 2019, the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of the securities class action.
In 2018, a different federal district court dismissed the ERISA stock-drop class action, which alleged that Edison’s executives breached their duty of prudence under ERISA by permitting investment in allegedly overvalued Edison stock. In 2021, a different panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal, in the court’s first published opinion applying a new pleading standard for ERISA stock-drop actions.
As for the related derivative litigation, the federal action was dismissed by the district court in 2016, after which the plaintiffs elected not to amend, and the state action was voluntarily dismissed in 2017.
Press Coverage: Edison Execs Beat ERISA Suit Over $3.3B Deal Disclosures
- Defending Valid Termination of Merger in an Expedited Trial and Securing Termination Fee
Munger, Tolles & Olson represented Rent-A-Center, which operates about 2,500 rent-to-own consumer goods stores in the United States, in an expedited trial in the Delaware Court of Chancery challenging Rent-A-Center’s termination of a proposed merger. Rent-A-Center agreed to be acquired by a private-equity firm pursuant to a merger agreement that allowed either party to terminate the deal before closing in certain circumstances, including if neither party gave written notice of an election to extend the term. After Rent-A-Center exercised its termination right, the acquirer and its main financial backer filed a complaint and motion for a temporary restraining order on December 21, 2018, seeking declaratory relief and specific performance requiring Rent-A-Center to complete the go-private transaction.
Over the next 11 weeks, Munger Tolles guided Rent-A-Center through fact and expert discovery, trial and substantial post-trial briefing. On March 14, 2019, less than three months after the case was filed, the court issued an opinion holding that although the plaintiffs had been “blindsided,” Rent-A-Center’s termination of the merger was valid. The court rejected the plaintiffs’ various claims of breach of contract, breach of the implied covenant of good faith and fair dealing, estoppel and waiver as “after-the-face rationalizations” of “startling” behavior and denied all of the relief the plaintiffs sought.
After that ruling, the acquirer agreed to settle Rent-A-Center’s counterclaims to recover the $126.5 million “reverse termination fee” that Rent-A-Center was owed under the merger agreement. Although the Court of Chancery had called the amount of the fee “enormous,” Rent-A-Center nonetheless received $92.5 million in settlement of its counterclaims, while continuing its existence as a public company.
Press Coverage: Rent-A-Center not bound by merger deal with Vintage Capital: judge
- Vindicating Client’s Commitment to a Respectful Workplace and Protecting Its Stockholders
Client: McDonald’s Corporation
In 2019, McDonald’s Board terminated the company’s CEO after learning that he had engaged in a relationship with an employee in violation of the company’s standards of conduct. A subsequent complaint and investigation led to the discovery in July 2020 that the CEO’s acts of misconduct had been more numerous, and more serious, than he had represented at the time of his termination. Munger, Tolles & Olson represented the company as plaintiff in suing the ex-CEO in the Delaware Court of Chancery to claw back his severance and incentive awards. After defeating a motion to dismiss, Munger, Tolles & Olson negotiated a settlement in which McDonald’s recovered equity awards and cash worth over $105 million, which the ex-CEO would have forfeited had he been truthful at the time of his termination and, as a result, been terminated for cause. As Reuters commented when the settlement was announced on December 16, 2021, “The clawback of [the CEO’s] hefty severance pay shows other boards how to do better for shareholders than the usual nothingburger.”
Munger, Tolles & Olson also represented McDonald’s in connection with stockholder information demands (known as Section 220 demands) and derivative litigation related to the CEO’s misconduct. A would-be derivative plaintiff sued to compel the company to produce additional documents in response to its Section 220 demands. After a one-day trial in October 2021, the Court of Chancery entered judgment in favor of McDonald’s, holding that the company had produced all that was “necessary and essential” to a proper stockholder request and was required to do no more.
Press Coverage: Former McDonald’s C.E.O. Repays Company $105 Million